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There are some fears that the funeral procession of Margaret Thatcher tomorrow could turn into a debacle of protest and arrest.

The Observer reported on Sunday that Commander Christine Jones, the police officer who will be in charge on the day, “warned” that police officers will have the power to arrest protesters under Section 5 of the Public Order Act on the day.

This isn’t exactly unusual; after all, the police always have the law at their disposal.

But it’s worth noting how problematic Section 5 of the Public Order Act can be, particularly in situations like tomorrow’s.

The section makes it an offence to engage in language (including writing on a placard) or behaviour “within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”.

This has led to problems for free speech and free protest in the past, from the arrest of Christian preachers to the conviction of Al Muhajiroun poppy-burner Emdadur Choudhury.

Considering the mix of Thatcher fans, tourists and events junkies who will line the route of the funeral cortege tomorrow along with the expected protesters, it is conceivable that any protest could be construed as likely to cause “harassment, alarm or distress” to someone. The issue is whether that likelihood alone enough to cause the police to intervene? Or should the deployment of the Public Order Act be limited to times when there are genuine threats to public order?

Tomorrow’s funeral, while not a “state funeral” as such, is most certainly a public event.

And being a public event, it will be open to protest: the police officers on duty tomorrow will need to bear in mind that they have a duty not just to safeguard the funeral proceedings, but to safeguard free expression too.

Padraig Reidy is senior writer at Index on Censorship. @mePadraigReidy

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Read Index on Censorship’s response to the CPS guidelines on social media prosecutions here

Keir Starmer QC became Director of Public Prosecutions in 2008. A man with a proven record as a human rights lawyer, gaining particular kudos as a free speech advocate for work on the McLibel case and the defence of MI5 whistleblower David Shayler.

But Starmer’s time as the head of the Crown Prosecution Service has coincided with the rise of online social media as a part of everyday life for millions of Britons. The consequent rise in criminal cases against Facebook and Twitter users for “offensive” speech brought under the controversial Communications Act 2003 (article 127) has created a headache for Starmer.

In the face of increasing public unease about the criminalisation of online speech, the DPP launched interim guidelines for prosecutors dealing with social media cases. These guidelines ask prosecutors to take many factors into account: whether the messages investigated constitute actual incitement to violence or harassment, the context in which posts are made, the age of the person being investigated (in the hope of avoiding criminalisation of thoughtless teenagers) and even whether the person was intoxicated at the time of sending an “offensive” tweet.

Index met Kier Starmer recently to discuss the guidelines and the CPS’s role in protecting free speech.

“It’s very important the CPS protects free speech — that’s a given,” Starmer says when we meet at his 9th floor office overlooking the Thames with views from the Shard to St Paul’s:

“The way I see it, the CPS is bound by the Human Rights Act, which enshrines Article 10 [the right to free expression]. So as long as article 10 gets it right, there’s an inbuilt safeguard. I appreciate there are different judgment calls along the way. It’s not always the easiest ride, but there is always that very powerful torch than can be shone on what we do, because we have an adversarial public system.”

Has there been a swift rise in social media prosecutions?

“It is certainly true that there are more cases now then there were a year ago and there were more cases a year ago than there were a year before that. Why that is, is hard to guess really. But we need to keep our feet on the ground here. There is great potential for a large number of cases. With something in the order of 340 million tweets a day you only need a low percentage of those to be grossly offensive and you’ve got a lot of potential cases. But we’re not seeing anything of that order.”

Much criticism has centred on the use of the Communications Act to prosecute cases, specifically section 127, which deals with “menacing” and “grossly offensive” communications. Is the act fit for purpose?

“That raises the interesting question of what the Communications Act was intended to deal with,” clearly warming to a pet topic. “It can all be traced back to an act from 1935 which was intended to protect the staff in telephone exchanges just as people were beginning to use telephones. More people were beginning to use telephones and they wanted to protect exchange staff from, guess what, grossly offensive communications etc.

“Tracing the genealogy is really interesting. The bit in the Communications Act which prohibits false messages if the purpose is to distress others could be traced back to the practice of sending false messages in telegrams when that was the quickest way of communicating with people. People thought it was funny to send false messages and others got distressed as they had no means of checking.”

Perhaps the most infamous case to go to court was the “Twitter joke trial”. The case concerned a tweet sent by trainee accountant Paul Chambers, who joked that he would blow Robin Hood airport in Doncaster “sky high” if his flight to Belfast was cancelled due to bad weather. Some believed that Starmer had personally pursued the issue as a “test case”. The DPP resolutely denies this:

“Absolutely not,” he says. “The case started life in the magistrate’s court with a decision by a local prosecutor and a local police officer. There are 730,000 defendants going through magistrates court every year and there’s no way that we could keep sight of, nor would we want to when there are cases going through.

“The difficulty we ran into with [the appeal against the original verdict] was a very technical one. It was an appeal against the crown court, not against the CPS, so I wasn’t a respondent. There’s been a lot written about this as though it were some great mystique and we were trying to drive it forward at all costs, but it was the opposite. ”

Does Starmer think the game has changed when it comes to free speech and law enforcement?

“The challenge in terms of free speech is quite profound, actually,” Starmer replies. “The reason is that, for better or for worse, over the years, the balance to criminal law for free speech has been held by reference to notions such as ‘place’. Now there’s been debates about whether that’s right or wrong, but what is absolutely clear from all that is that there has always been a protected space for free speech. When you get the development in social media you have something that cuts across all that because ‘place’ doesn’t really resonate in the same way.

“I think it’s a big challenge and I think people should engage with it. I mean, there are some who’ll say ‘well there should just be no regulation’, but if you don’t have that view then you have to think how we address the balance now there is this different way of communicating. The scale and the way in which people communicate is part of that and the ability of people to communicate with many more people than they’ve ever been able to before is quite extraordinary. To connect with tens of thousands, possibly even millions of people.”

So how do we deal with public communication in a whole new space?

“At first there were calls for applying the public order approach, but I was a bit uncomfortable with that because it’s much greater than that.”

But there have been public order arrests for social media posts.

“I’m not saying that’s wrong in those cases,” he says. “But I think we made it clear in the guidelines that public order wouldn’t be your first port of call here, because it is designed really to deal with speech in a different way.”

The crucial question raised in the CPS guidelines is that of context, says Starmer:

“Real-life cases come up, and judgements have to be made. And what has happened over a year or two is an increasing number of these cases coming through… I think, having looked at them that they are very difficult judgement calls because the context is critically important.”

The DPP believes that his interim guidelines should help the public, as well as prosecutors, understand the processes behind cases:

“My view is that it’s far better to have the decision making process mapped out,” he explains, “so that one, the public can see how we’re doing it, and two, the prosecutor can be walked through the decision making process for consistency. [It] allows us to see that the evidence considered is relevant and has made a judgement call on the right basis. And that’s what guidelines like this are designed to achieve.”

What happens if, a year from now, we are still seeing a proliferation of controversial cases? Would Starmer call for a change in the law?

“I will do my very best to make the law workable,” he says. “Before going to parliament, if, despite our best efforts we don’t seem to be able to make it workable, then I might at that stage say, well somebody needs to look at the law. I think that’s how I’d approach it.”

Starmer started and finished our meeting with an appeal for Index readers and supporters to engage in the public consultation on the guidelines, which closes on 13 March. As more of us spend our lives communicating online, it’s important that he, and we, get this right.

Padraig Reidy is senior writer for Index on Censorship. He tweets at @mePadraigReidy

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Sir Hugh was pipped at the post in 2011 as a candidate to be the Metropolitan Police Commissioner, by Sir Bernard Hogan-Howe. Some suggest Sir Hugh’s blunt style may have cost him political support — though he is often labelled the police’s favourite police officer.

Sporting a pink striped tie against a blue striped shirt, Sir Hugh is welcoming, friendly and loquacious in his rather austere office just up the road from Scotland Yard in central London. And as we talk, he is indeed blunt. Some of his comments have a hard edge and he gives the impression of a man who takes no hostages but has a sharp political sense.

Sir Hugh describes ACPO as “the glue that holds national policing together”. From briefing newly elected police commissioners to coordinating national police responses to terrorist threats, it is a wide and demanding brief, not least as chief constables all volunteer, on top of their day job, to lead different areas for ACPO where national coordination is needed. As Sir Hugh told the Leveson Inquiry: “In the absence of a federal model of policing [ACPO] provides a voluntary structure to secure national agreements.”

Human rights and free speech

In the UK, the police are, in theory, part of a system that defends our individual and collective human rights — including the right to free speech, and the freedom of assembly and association. Yet the police’s commitments to human rights in practice is, inevitably questioned as real life events unfold. Meanwhile, parts of the British media and frequently suggest our human rights laws and commitments are undermining common sense policing and democratic decision-making, or risking our security.

Sir Hugh is clear and liberal-sounding on the overarching principle. Free expression and human rights are, he insists, “a function of good policing…human rights are not an impediment to effective policing.”

But there’s a hard underpinning to this view: “Those who want cheap tilts at the Human Rights Act paint it as an impediment; it’s the opposite. We use lethal force — compliant with article two — so it’s flawed to say it’s an impediment.” Article two sets out the right to life, but also allows police to use no more force than “absolutely necessary” to arrest someone or in tackling a riot. This can cover cases where deaths occur. Sir Hugh’s is not a soft defence of the Human Rights Act.

Nor does he see security and police openness in providing information necessarily as trade-offs: “The biggest national threats without question are cybercrime and terrorism” he says. But he thinks transparency, as far as possible, is part of tackling these threats “so you only don’t talk [about them] if you absolutely can’t.”

The harder challenge in policing free expression is where there may be calls to constrain free speech or the right to protest. There are a number of laws that give police the option or even the requirement to step in — some, such as section 5 of the Public Order Act are broadly phrased and mean the police have a lot of leeway (although ‘insulting’ language is now to be taken out of the Act).  Sir Hugh admits frankly that where and whether to constrain rights can be a “nightmare – the first default is to call the police”. He  underlines the importance of discretion in policing and argues “cops tolerate a lot”. He adds: “if we enforced everything, there would be no cops on the streets.”

Having faced the challenges in Northern Ireland of how to manage the right to protest in the face of major community tensions, Sir Hugh is clear that these rights are not absolute: “These are conditional rights not unconditional rights — you can’t just ride roughshod over others….you have to manage that very difficult territory.” When pushed he admits that the tactic of kettling “is pretty hard edged” but adds: “We have used containment in football stadium for decades, and no one complained.”

Public sensitivity to offence is, Sir Hugh thinks, on the rise not least in the context of some recent high profile prosecutions of ‘offensive’ speech on social media: “The expectation of citizens that the police will act if they are insulted has increased, especially if it’s personal and hurtful.” He thinks the interim guidelines issued last December by the Director of Public Prosecutions Keir Starmer, which aim to rein in the number of such prosecutions, will be “helpful” and does not want police time taken up policing “every insulting comment.”

But laws, he insists, are the realm of government: “We don‘t lobby” he says. “We act on laws as the government creates them.”

He says frontline officers “have never been so well trained” and do understand their responsibilities in defending and protecting human rights, and using discretion and judgement. But he thinks “with 20 per cent cuts, training tends to go” – and describes the cuts facing the police as their “biggest challenge”.

Costs can be a key issue for free expression; if there’s a major protest against a play or an exhibition, the policing that may be needed isn’t necessarily provided free. But should we have to pay to have our human rights defended? “As a chief constable” says Sir Hugh “I’d be prepared to have a conversation about it. But it’s not necessarily wrong for someone dealing with a commercial event to make a contribution if others are put at risk because we shift resources.” We have to balance, he says, the human rights principles of the right to be protected with ever more limited resources.

Police and the Press

Sir Hugh is clearly pleased with the findings of Lord Justice Leveson’s inquiry that there were some wrong judgements and decisions by police but no pervasive corruption or lack of integrity. He bristles slightly at the suggestion Leveson let the police off lightly, saying Leveson is a judge who “follows evidence and there is none to leap from individual actions to root and branch failure to police media relations.”

He also argues that most police-media relations have been for the most part unproblematic: “A lot of cops gave evidence to Leveson and the vast majority described an utterly proper professional relationship with the press…and meeting to discuss over tea or a pint of beer is OK, proper and proportionate.” He is not concerned with Leveson’s suggestion that there shouldn’t be off the record briefings: “I think it [‘off the record’] became misunderstood as secret, clandestine, and Leveson was trying to take the heat out of it.” But he insists that there will be briefings that are not for the public or for background context.

He has some sharp words for the press too, emphasising the difference in public trust ratings for police compared to journalists. “If you look at the polls…you see the public feel quite powerless.” The police, he says, deal with victims, such as “people dealing with massive grief and utterly unused to the media” and if there is a public interest in intrusion that is, he thinks, for journalists to justify. But if media behaviour is “horrendous, unfair, then the public must have a right to complain.”

In the end, Sir Hugh thinks the United Kingdom is doing OK compared to other countries in the world: “If you walk outside and talk on the street corner you are very unlikely to get arrested —- isn’t that the point?” The British model, he believes, is built around tolerance, “though that’s not to say sometimes there is not a hard edge.”

Tolerance with a hard edge — perhaps a good summary of Sir Hugh’s approach to policing our rights. But where that hard edge is placed and how it is interpreted on the ground will continue to be a central question for whether free expression and other rights are adequately defended by the police.

 Kirsty Hughes is Chief Executive of Index on Censorship

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